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LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- EIGHT
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 10, A. D.
1995
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 9, A. D.
1996
VOLUME LXX
Part II

LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY-EIGHT
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 10, A.D.
1995
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 9, A.D.
1996
VOLUME LXX
Part II
Vol. 70 769
Approved May 23, 1996
CHAPTER 342
FORMERLY
HOUSE BILL NO. 435
AS AMENDED BY HOUSE AMENDMENT NOS. 1 & 2 AND
SENATE AMENDMENT NO. 2
AN ACT TO AMEND SUBCHAPTER IIIA OF CHAPTER 41, TITLE 21, DELAWARE
CODE RELATING TO CONTROLLED-ACCESS HIGHWAYS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE: Two-thirds of all members elected to each House thereof concurring
therein.)
Section 1. Amend §4127, Title 21, Delaware Code, by striking the words in the title
"Unlawful Evasion of Delaware Turnpike Tolls" and substituting in lieu thereof the words:
"Unlawful Evasion of Delaware Turnpike and The Korean War Veterans Memorial Highway;
Harassment of Toll Collectors.".
Section 2. Amend §4127(b), Title 21, Delaware Code, by striking the second sentence
commencing with the words "Any violation" and ending with the words "5 days or both" and
substituting in lieu thereof the following:
"Any such violation regarding the payment of tolls shall be punishable by a fine
of not less than $25 nor more than $100, or imprisonment for not less than 10 nor more
than 30 days, or both."
Section 3. Amend §4127, Title 21, Delaware Code by adding thereto a new subsection
(g) to read as follows:
"(g) If any vehicle is witnessed by a police officer, toll collector, video
surveillance device, to be in violation of subsection (b) of §4127, and the identity of the
operator is not otherwise apparent, it shall be a rebuttable presumption that the person in
whose name the vehicle is registered committed such violation of subsection (b) §4127."
Section 4. Amend §4127, Title 21, Delaware Code, by adding thereto a new subsection
(h) to read as follows:
"(h) Any person who commits an act of offensive touching, presents payment in
the form of an obviously unsanitary piece of U.S. currency, or who commits any act
knowing that one is thereby likely to cause offense or alarm to an on duty toll collector,
will be guilty of an unclassified misdemeanor."
770 Vol. 70
CHAPTER 343
FORMERLY
HOUSE BILL NO. 406
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2 AND
SENATE AMENDMENT NOS. 1 Sr 2
AN ACT TO AMEND CHAPTER 5, TITLE 11 OF THE DELAWARE CODE RELATING TO
CRIMES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (three-fifths of all members elected to each house thereof concurring
therein):
Section 1. Amend §1441, Chapter 5, Title II of the Delaware Code by striking
subsection (h) of said section, and substituting in lieu thereof the following:
"(h) Notwithstanding any provision to the contrary, anyone retired as a police
officer, as "police officer" is defined by §1911 of this Title, who is retired after having
served at least 20 years in any law enforcement agency within this State, or who is retired
and remains currently eligible for a duty-connected disability pension, may be licensed to
carry a concealed deadly weapon for the protection of his or her person or property after
his or her retirement, if the following conditions are strictly complied with:
(1) If he or she applies for the license within 90 days of the date of his or
her retirement, he or she shall pay a fee of $34.50 to the Prothonotary in the
county where he or she resides and present to the Prothonotary both:
a certification from the Attorney General's office, in a form
prescribed by the Attorney General's office, verifying that the retired
officer is in good standing with the law enforcement agency from which
he or she is retired; and
a letter from the Chief of the retired officer's agency verifying
that the retired officer is in good standing with the law enforcement
agency from which he or she is retired; or
(2) If he or she applies for the license more than 90 days, but within 20
years, of the date of his or her retirement, he or she shall pay a fee of $34.50 to the
Prothonotary in the county where he or she resides and present to the
Prothonotary certification forms from the Attorney General's office, or in a form
prescribed by the Attorney General's office, that:
the retired officer is in good standing with the law enforcement
agency from which he or she is retired;
the retired officer's criminal record has been reviewed and that
he or she has not been convicted of any crime greater than a violation
since the date of his or her retirement; and
the retired officer has not been committed to a psychiatric
facility since the date of his or her retirement."
Approved May 23, 1996
Vol. 70 171
CHAPTER 344
FORMERLY
HOUSE BILL NO. 434
AN ACT TO AMEND CHAPTER 5, TITLE Ii OF THE DELAWARE CODE RELATING TO
THE CRIME OF RECKLESS BURNING OR EXPLODING.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section I. Amend §804, Chapter 5, Title 11 of the Delaware Code by designating the
first paragraph of said section as new subsection (a), and by striking the second paragraph of said
section in its entirety.
Section 2. Amend §804, Chapter 5, Title 11 of the Delaware Code by adding thereto a
new subsection, designated as subsection (b), which new subsection shall read as follows:
"(b) Reckless burning or exploding shall be punished as follows:
Where the total amount of pecuniary loss caused by the burning or exploding,
when totaled for all victims, is less than fifteen hundred dollars ($1,500), such burning or
exploding shall be a Class A misdemeanor.
Where the total amount of pecuniary loss caused by the burning or exploding,
when totaled for all victims, is fifteen hundred dollars ($1,500) or more, such burning or
exploding shall be a Class G felony."
Approved May 23, 1996
CHAPTER 345
FORMERLY
SENATE BILL NO. 294
AN ACT TO AMEND AN ACT BEING CHAPTER 504, VOLUME 57, LAWS OF
DELAWARE, AS AMENDED, ENTITLED "AN ACT TO INCORPORATE THE
TOWN OF HENLOPEN ACRES" TO CLARIFY LONG-TERM BORROWING
POWER.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (Two-thirds of all members elected to each house thereof concurring
therein):
Section I. Subsection (a), Section 32, of Chapter 504, Volume 57, Laws of Delaware, as
amended, entitled "An Act to Incorporate the Town of Henlopen Acres" be and the same is
hereby amended by striking Subsection (a), Section 32, in its entirety and substituting in lieu
thereof the following:
"Section 32.(a) In addition to other borrowing powers granted to the Town under
this Charter or by State law, the Commissioners shall have authority to borrow money for
any proper municipal purpose through the issuance of bonds or other evidence of
indebtedness to secure the repayment thereof, on the full faith and credit of the Town, or
such other security or securities as the Commissioners shall elect, for the payment of
principal thereof and interest due thereon."
Section 2. Subsection (c), Section 32, be and the same is hereby amended by adding a
new Paragraph 7. to said subsection as follows:
"7. Paying all expenses deemed necessary by the Commissioners for the issuance
of said bonds or other evidence of indebtedness, including bond discount and legal expenses of
bond counsel."
Approved May 23, 1996
772 Vol. 70
CHAPTER 346
FORMERLY
SENATE BILL NO. 295
AN ACT TO AMEND AN ACT BEING CHAPTER 504, VOLUME 57, LAWS OF
DELAWARE, AS AMENDED, ENTITLED "AN ACT TO INCORPORATE THE
TOWN OF HENLOPEN ACRES" TO CHANGE THE TITLE OF THE TOWN CLERK
TO TOWN MANAGER.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (Two-thirds of all members elected to each house thereof concurring
therein):
Section 1. Amend Chapter 504, Volume 57, Laws of Delaware, as amended, entitled "An
Act to Incorporate the Town of Henlopen Acres" by striking the word "Clerk" as it appears in
Subsection (a) of Section 9; Subsections (a), (b), and (c) of Section 15; Subsection (I) of Section
16; Subsection (b) of Section 21; Subsection (g) of Section 21A; Subsection (e) of Section 22;
Subsection (a), (c), (d) and (e) of Section 23; Subsection (a) and (b) of Section 24; Subsection (b)
of Section 25; Subsections (a) and (b) of Section 27; Subsections (a), (b) and (c) of Section 28;
and Paragraph 7, Subsection (a) of Section 34 thereof and substituting in lieu thereof the word
"Manager".
Section 2. Amend the title prior to Section 15, Chapter 504, Volume 57, Laws of
Delaware, as amended by striking the word "CLERK" as it appears therein and substituting in
lieu thereof the word "MANAGER".
Approved May 23, 1996
CHAPTER 347
FORMERLY
SENATE BILL NO. 296
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND AN ACT BEING CHAPTER 504, VOLUME 57, LAWS OF
DELAWARE, AS AMENDED, ENTITLED "AN ACT TO INCORPORATE THE
TOWN OF HENLOPEN ACRES" TO PROVIDE ALTERNATIVE METHODS FOR
COLLECTION OF UNPAID TAXES, FEES AND OTHER CHARGES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (Two-thirds of all members elected to each house thereof concurring
therein):
Section 1. Amend Subsection (b) of Section 24, Chapter 504, Volume 57, Laws of
Delaware, As Amended, by striking said Subsection (b) in its entirety and substituting the
following in lieu thereof:
(b) The Mayor or the Town Manager, when any tax becomes delinquent, may, in
the name of the Town of Henlopen Acres, institute suit before any Justice of the Peace or in the
Court of Common Pleas of the State of Delaware, in and for Sussex County, or in the Superior
Court of the State of Delaware, in and for Sussex County, for the recovery of the unpaid tax in an
action of debt, and upon judgment obtained, may sue out writs of execution as in case of other
judgments recovered before a Justice of the Peace or in the Court of Common Pleas, or in the
Superior Court, as the case may be.
Section 2. Amend Subsection (c) of Section 24, Chapter 504, Volume 57, Laws of
Delaware, As Amended, by striking said Subsection (c) in its entirety and substituting the
following in lieu thereof:
Should the Mayor or Town Manager so elect, he is empowered to sell the
lands and tenements of the delinquent taxpayer or the lands and tenements of the
delinquent taxpayer alienated subsequent to the levy of the tax by the direction of the
Town Commissioners using any of those procedures specified for the sale of land for the
collection of taxes on the part of the individuals charged with the responsibility for the
collection of taxes for Sussex County, and all such procedures and methods available for
the sale of land, as aforesaid, as they are presently enacted and hereafter amended, are
included herein and made a part hereof by reference thereto, including the method of sale
by monition, as the same is set forth in the statutes made and provided, substituting the
Town of Henlopen Acres for Sussex County therein."
Section 3. Amend Section 24, Chapter 504, Volume 57, Laws of Delaware, As
Amended, by adding a new Subsection (d) to read as follows:
All taxes imposed by the Town shall be and constitute a lien for a period of
ten (10) years from date so levied upon the real property against which such charges are
imposed. In the case of a life estate, the interest of the life tenant shall first be liable for
the payment of any charges so levied. Such lien shall have preference and priority to all
other prior liens on such real property, although such lien or liens be of a time and date
prior to the time of attaching of such lien for taxes."
Approved May 23, 1996
Vol. 70 773
774 Vol. 70
CHAPTER 348
FORMERLY
SENATE BILL NO. 313
AN ACT TO AMEND CHAPTER 237, VOLUME 51, LAWS OF DELAWARE, AS
AMENDED, ENTITLED "AN ACT TO REINCORPORATE THE TOWN OF
BRIDGEVILLE" RELATING TO INCREASING THE POWER TO RAISE REVENUE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (Two-thirds of all Members elected to each House thereof concurring therein):
Section 1. AMEND Section 27. Chapter 237, Volume 51, Laws of Delaware, as
amended, by striking the figure 1100,000.00" as the same appears in the first sentence of the
said section and by substituting the figure "$200,000.00".
Approved May 23, 1996
CHAPTER 349
FORMERLY
SENATE BILL NO. 363
AN ACT TO AMEND TITLE 8 OF THE DELAWARE CODE RELATING TO THE
GENERAL CORPORATION LAW.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (Two-thirds of all members elected to each house thereof concurring
therein):
Section 1. Amend Section 103(d), Title 8, Delaware Code, by deleting the last sentence
thereof and substituting the following sentence; "If any instrument filed in accordance with
subsection (c) of this section provides for a future effective date or time and if the transaction is
terminated or its terms are amended to change the future effective date or time prior to the future
effective date or time, the instrument shall be terminated or amended by the filing, prior to the
future effective date or time set forth in such instrument, of a certificate of termination or
amendment of the original instrument, executed in accordance with subsection (a) of this section,
which shall identify the instrument which has been terminated or amended and shall state that the
instrument has been terminated or the manner in which it has been amended."
Section 2. Amend Section 141(c), Title 8, Delaware Code, by denominating the current text
thereof as subsection "( 1 )" of such section; by adding the following two sentences as the first two
sentences of such section: "All corporations incorporated prior to July 1, 1996, shall be governed by
subsection (I) of this section. provided that any such corporation may by a resolution adopted by a
majority of the whole board elect to be governed by subsection (2) of this section, in which case
subsection (1) of this section shall not apply to such corporation. All corporations incorporated on
or after July 1, 1996, shall be governed by subsection (2) of this section."; and by adding the
following as subsection (2) of such section: "(2) The board of directors may designate 1 or more
committees, each committee to consist of 1 or more of the directors of the corporation. The board
may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. The bylaws may provide that in
the absence or disqualification of a member of a committee, the member or members present at any
meeting and not disqualified from voting, whether or not such member or members constitute a
quorum. may unanimously appoint another member of the board of directors to act at the meeting
in the place of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors, or in the bylaws of the corporation, shall have
and may exercise all the powers and authority of the board of directors in the management of the
business and affairs of the corporation, and may authorize the seal of the corporation to be affixed
to all papers which may require it; but no such committee shall have the power or authority in
reference to the following matters: (i) approving or adopting, or recommending to the stockholders,
any action or matter expressly required by this chapter to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any bylaw of the corporation,"
Section 3. Amend Section 160(a)(1), Title 8, Delaware Code, by adding after the words
"class or series of its stock" appearing in the first sentence the phrase ",or, if no shares entitled to
such a preference are outstanding, any of its own shares.".
Section 4. Amend Section 228(d), "fide 8, Delaware Code, by adding the following words
at the end of the first sentence: "and who, if the action had been taken at a meeting, would have
been entitled to notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders or members to take the action were
delivered to the corporation as provided in subsection (c) of this section"; and by deleting the
following phrase from the end of the subsection: ", and that written notice has been given as
provided in this section".
Vol. 70 775
776 Chapter 349
Vol. 70
Section 5. Amend Section 242(a), Title 8, Delaware Code, by adding the words
subdivision, combination" immediately following the word "reclassification" in the two places
where such word appears in Section 242(a).
Section 6. Amend Section 242(a)(3), Title 8, Delaware Code, by inserting immediately
before "; or" at the end of such section the following: ", or by subdividing or combining the
outstanding shares of any class or series of a class of shares into a greater or lesser number of
outstanding shares".
Section 7. Amend Section 242(c), Title 8, Delaware Code, by adding the words "the
effectiveness of' immediately following the words "prior to".
Section 8. Amend Section 251(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 9. Amend Section 252(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 10. Amend Section 253(a), Title 8, Delaware Code, by inserting the following
immediately after the first sentence of subsection 253(a): "Any of the terms of the resolution of the
board of directors to so merge may be made dependent upon facts ascertainable outside of such
resolution, provided that the manner in which such facts shall operate upon the terms of the
resolution is clearly and expressly set forth in the resolution. The term 'facts', as used in the
preceding sentence, includes, but is not limited to, the occurrence of any event, including a
determination or action by any person or body, including the corporation."
Section 11. Amend Section 254(c), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 12. Amend Section 255(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 13. Amend Section 256(b), Title 8, Delaware Code by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 14. Amend Section 257(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence. includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 15, Amend Section 263(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 16. Amend Section 264(b), Title 8, Delaware Code, by adding the following
sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or action by any person or body,
including the corporation."
Section 17. Amend Section 251(c)(6), Title 8, Delaware Code, by deleting the words "the
principal place of business" and inserting in lieu thereof the words "an office".
Chapter 349
Vol. 70
777
Section 18. Amend Section 252(c)(6), Title 8, Delaware Code, by deleting the words the
principal place of business and inserting in lieu thereof the words "an office".
Section 19. Amend Section 254(d)(6), Title 8, Delaware Code, by deleting the words "the
principal place of business" and inserting in lieu thereof the words "an office".
Section 20. Amend Section 263(c)(6), Title 8, Delaware Code, by deleting the words "the
principal place of business" and inserting in lieu thereof the words "an office".
Section 21. Amend Section 264(c)(6), Title 8, Delaware Code, by deleting the words "the
principal place of business" and inserting in lieu thereof the words "an office".
Section 22. Amend Section 262(d)(2), Title 8, Delaware Code, by deleting its text and
substituting the following text: "If the merger or consolidation was approved pursuant to § 228 or §
253 of this title, each constituent corporation, either before the effective date of the merger or
consolidation or within ten days thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights of the approval of the
merger or consolidation and that appraisal rights are available for any or all shares of such class or
series of stock of such constituent corporation, and shall include in such notice a copy of this
section; provided that, if the notice is given on or after the effective date of the merger or
consolidation, such notice shall be given by the surviving or resulting corporation to all such
holders of any class or series of stock of a constituent corporation that are entitled to appraisal
rights. Such notice may, and, if given on or after the effective date of the merger or consolidation,
shall, also notify such stockholders of the effective date of the merger or consolidation. Any
stockholder entitled to appraisal rights may, within twenty days after the date of mailing of such
notice, demand in writing from the surviving or resulting corporation the appraisal of such holder's
shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the appraisal of such holder's
shares. If such notice did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders of any class or series of
stock of such constituent corporation that are entitled to appraisal rights of the effective date of the
merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice
to all such holders on or within 10 days after such effective date; provided, however, that if such
second notice is sent more than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An affidavit of the secretary or
assistant secretary or of the transfer agent of the corporation that is required to give either notice
that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior
to the date the notice is given; provided that, if the notice is given on or after the effective date of
the merger or consolidation, the record date shall be such effective date. If no record date is fixed
and the notice is given prior to the effective date, the record date shall be the close of business on
the day next preceding the day on which the notice is given.
Section 23. Amend Section 273(a), Title 8, Delaware Code, by adding the words ", unless
otherwise provided in the certificate of incorporation of the corporation or in a written agreement
between the stockholders," immediately after the words "either stockholder may".
Section 24. This Act shall be effective on July 1, 1996.
Approved May 23, 1996
778 Vol. 70
CHAPTER 350
FORMERLY
SENATE BILL NO. 315
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 45, TITLE 6, DELAWARE CODE, RELATING TO
EQUAL ACCOMMODATIONS; AND CHAPTER 30, TITLE 31, DELAWARE CODE,
RELATING TO THE STATE HUMAN RELATIONS COMMISSION.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Chapter 45, Title 6, Delaware Code, is amended by striking it in its entirety and
inserting in lieu thereof a new Chapter 45 to read as follows:
"CHAPTER 45. EQUAL ACCOMMODATIONS.
Section Title
4500 Short Title
4501 Purpose and Construction
4502 Definitions
4503 Persons Entitled to Protection
4504 Unlawful Practices
4505 Commission's Authority; Power to Delegate
Authority
4506 Commission's Power to Adopt Rules
4507 Education and Conciliation
4508 Procedure on Complaint
4509 Commission's Power to Investigate Compliance
4510 Compelling Attendance of Witnesses and Production
of Documents, Oaths, Subpoenas
4511 Judicial Review
4512 Enforcement by the Attorney General
§ 4500. Short Title.
This chapter may be cited as the 'Delaware Equal Accommodations Law.'
§ 4501. Purpose and Construction.
This chapter is intended to prevent, in places of public accommodations, practices of
discrimination against any person because of race, age, marital status, creed, color, sex, handicap
or national origin. This chapter shall be liberally construed to the end that the rights herein
Chapter 350
Vol. 70
provided for all people, without regard to race, age, marital status, creed, color, sex, handicap or
national origin, may be effectively safeguarded.
§ 4502. DefinitionS.
As used in this chapter:
(I) A 'place of public accommodation means any establishment which caters
to or offers goods or services or facilities to, or solicits patronage from, the general
public. This definition shall apply to hotels and motels catering to the transient public,
but it shall not apply to the sale or rental of houses, housing units, apartments, rooming
houses or other dwellings, nor to tourist homes with less than ten rental units catering to
the transient public.
'Chairperson' means the Chairperson of the State Human Relations
Commission.
'Commission' means the State Human Relations Commission.
'Complainant' means the person who files a complaint under § 4508 of this
chapter.
'Conciliation' means the attempted resolution of issues raised by a
complaint, or by the investigation of such complaint, through informal negotiations.
'Conciliation agreement' means a written agreement setting forth the
resolution of the issues in conciliation.
'Discriminatory public accommodations practice' means an act that is
unlawful under this chapter.
'Handicap' means a physical or mental impairment which substantially
limits a person's major life activities, or being regarded as having such an impairment,
but such terms do not include current, illegal use of a controlled substance as defined in
Section 102 of the Controlled Substance Act (21 U.S.C. 802) or Delaware Code Title
16, Chapter 47, Uniform Controlled Substance Act. Discrimination against a
handicapped person includes discrimination against the use of a support animal because
of a physical handicap of the user. Support animal means any animal individually trained
to do work or perform tasks to meet the requirements of a physically disabled person,
including, but not limited to, minimal protection work, rescue work, pulling a wheelchair
or fetching dropped items.
'Marital status' means the legal relationship of parties as determined by the
laws of marriage applicable to them or the absence of such a legal relationship.
'Panel' means a group of three (3) or more Commissioners appointed by
the Chairperson to perform any task authorized by this chapter.
'Panel Chair' means that Commissioner serving on a Panel who is
designated by the Chairperson to serve as the chairperson of the Panel.
'Respondent' means a person who is alleged to have committed a
discriminatory public accommodations practice.
'Special Administration Fund' means the fund created pursuant to 31 Del.
C. §3005.
§ 4503. Persons Entitled to Protection.
All persons within the jurisdiction of this State are entitled to the full and equal
accommodations, facilities, advantages and privileges of any place of public accommodation
779
780 Chapter 350
Vol. 70
regardless of the race, age, marital status, creed, color, sex, handicap or national origin of such
persons.
§ 4504. Unlawful Practices.
No person being the owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of public accommodation, shall directly or indirectly refuse, withhold
from or deny to any person, on account of race, age, marital status, creed, color, sex, handicap or
national origin, any of the accommodations, facilities, advantages, or privileges thereof. For the
purpose of training support animals to be used by the handicapped, all trainers and their support
animals shall be included within those covered by this subsection.
No person, being the owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of public accommodation, shall directly or indirectly publish, issue,
circulate, post or display any written, typewritten, mimeographed, printed or radio
communications notice or advertisement to the effect that any of the accommodations, facilities,
advantages and privileges of any place of public accommodation shall be refused, withheld from
or denied to any person on account of race, age, marital status, creed, color, sex, handicap or
national origin, or that the patronage or custom thereat of any person belonging to or purporting
to be appearing to be of any particular race, age, marital status, creed, color, sex, handicap or
national origin is unlawful, objectionable, or not acceptable, desired, accommodated or solicited,
or that the patronage of persons of any particular race, age, marital status, creed, color, sex,
handicap or national origin is preferred or is particularly welcomed, desired or solicited.
It shall be unlawful to assist, induce, incite or coerce another person to commit
any discriminatory public accommodations practice prohibited by subsection (a) or (b) of this
section.
§ 4505. Commission's A thorny: Power to Delegate Authority.
(a) The authority and responsibility for administering this chapter shall be vested in the State
Human Relations Commission.
The Commission may delegate to a Panel any of its functions, duties and powers
under this chapter including, but not limited to, the holding of public hearings and the ordering of
relief pursuant to this chapter.
The Commission may delegate to employees of the Division of Human Relations
any of its functions, duties and powers with respect to investigating, conciliating, reporting or
otherwise acting as to any work, business or matter under this chapter but may not delegate to
such employees any of its functions, duties and powers with respect to the holding of public
hearings or the ordering of relief pursuant to this chapter.
§ 4506. Commission's Power to Adopt Rules.
The Commission shall have the power in accordance with the Administrative Procedures
Act in Title 29 to adopt rules and regulations concerning the manner in which complaints shall
be investigated or other investigations pursuant to this chapter shall be conducted, the manner in
which public hearings shall be conducted, the general form and content of agreements and orders
provided for in this chapter and such other rules as the Commission shall consider appropriate to
assist it in performing its duties and in carrying out the purposes of this chapter. Such rules and
regulations shall have the force and effect of law.
§ 4507. Fducation and Conciliation.
The Commission may commence such educational and conciliatory activities as, in its
judgement, will further the purposes of this chapter. It may call conferences of persons in the
business industry and other interested parties to acquaint them with the provisions of this chapter
and its suggested means of implementing it and endeavor, with their advice, to work out
programs of voluntary compliance and of enforcement. The Commission may consult with State
and local officials and other interested parties to learn the extent, if any, to which discriminatory
public accommodations practices exist in the State or locality, and whether and how State or
Chapter 350
Vol. 70
local enforcement programs might be utilized to combat such discrimination. The Commission
may issue reports on such conferences and consultations as it deems appropriate.
§ 4508. Procedure on Complaint.
(a) A person believing himself aggrieved by a discriminatory public accommodation
practice proscribed by § 4504 of this chapter may, by himself or his attorney-at-law, file with the
Commission a complaint in writing stating;
(I) his or her name and address;
the name and location of the place of public accommodation at which the
discriminatory public accommodation practice occurred, and the date, time and an
explanation thereof;
if known, the name and address of each Respondent and, if different, the
name of the owner, lessee, proprietor, manager or superintendent of the place of public
accommodation; and
such other information as the Commission requires.
(b) No complaint shall be filed with the Commission more than 90 days after the
occurrence of the alleged discriminatory public accommodation practice.
(c) Within 120 days after the complaint is filed, the Commission shall investigate the
complaint and endeavor to eliminate any unlawful discriminatory practice discovered through
conciliation. Insofar as possible, conciliation meetings shall be held in the county where the
alleged discriminatory public accommodations practice occurred. If the matter is resolved
through conciliation, the parties shall enter a conciliation agreement stating the terms of the
resolution of the matter.
(d) Whenever the Commission has reasonable cause to believe that a Respondent has
breached a conciliation agreement, the Commission shall refer the matter to the Attorney General
with a recommendation that a civil action be filed under § 4512 of this chapter for the
enforcement of such agreement.
(e) If a complaint cannot be resolved through conciliation as provided in subsection
(c), the Commission shall appoint a Panel to hold a public hearing within 60 days after the
expiration of 120-day period for investigation and conciliation. The deadlines provided in
subsections (c) and (e) may be extended by the Chairperson or the Panel Chair at the request of
any party or an employee of the Division of Human Relations upon a showing of good cause.
(f) Public hearings shall be conducted in accordance with rules prescribed by the
Commission. Each party may appear in person, be represented by counsel, present evidence,
cross-examine witnesses and obtain the issuance of subpoenas under § 4509 of this chapter. The
Delaware Rules of Evidence shall apply to the presentation of evidence in a public hearing
as they would in an administrative hearing conducted in accordance with Subchapter Ill of the
Administrative Procedures Act. A record shall be kept of all public hearings, a transcript of
which shall be provided at cost upon request of a party. Decisions of the Panel shall be made by
a majority of the members of the Panel.
(g) If the l'anel determines that a violation of § 4504 has not occurred, it shall issue
an order dismissing the complaint. The l'anel may award reasonable attorneys fees, costs and
expenses to the Respondent pursuant to this subsection if it determines that the complaint was
brought for an improper purpose, such as to harass or embarrass the Respondent.
(h) If the Panel determines that a violation of § 4504 has occurred, it shall issue an
order stating its findings of fact and conclusions of law and containing such relief as may be
appropriate, including actual damages suffered by the aggrieved person 'including damages
caused by humiliation and embarrassment', costs, expenses, reasonable attorneys' fees and
injunctive or other equitable relief. To vindicate the public interest, the Panel may assess a civil
penalty against the Respondent(s), to be paid to the Special Administration Fund:
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Vol. 70
in an amount not exceeding $5,000 for each discriminatory public
accommodations practice if the Respondent has not been adjudged to have committed any
prior discriminatory public accommodations practice;
in an amount not exceeding $15,000 for each discriminatory public
accommodations practice if the Respondent has been adjudged to have committed one
other discriminatory public accommodations practice during the 5-year period ending on
the date of the complaint; and
in an amount not exceeding $25,000 for each discriminatory public
accommodations practice if the Respondent has been adjudged to have committed two or
more discriminatory public accommodations practices during the 7-year period ending on
the date of the complaint.
Copies of orders entered pursuant to subsections (g) and (h) shall be served
personally or by registered or certified mail to each party or their counsel.
If the Commission concludes, at any time following the filing of a complaint, that
prompt judicial action is necessary to carry out the purpose of this chapter, the Commission may
authorize a civil action for appropriate temporary or preliminary relief pending final disposition
of the complaint under this section. Upon receipt of such authorization, the Attorney General
may elect, in the absence of a conflict of duties, to commence and maintain such an action in the
Court of Chancery on behalf of the Commission. If the Attorney General does not elect to
pursue such an action, the Commission may, with the written authorization of the Secretary of
State, employ special counsel to pursue such action notwithstanding 29 Del. C. Section 2507.
The commencement of a civil action under this subsection does not affect the initiation or
continuation of proceedings under this section.
§ 4509. Commission'Alloner_lo Investigate Compliance.
The Commission is empowered to investigate compliance with this chapter whether or
not a complaint is filed pursuant to § 4508. In furtherance of and not in limitation of this power,
the Commission may review practices of any place of public accommodation within this State.
Investigations pursuant to this section that cannot be resolved through conciliation may be
referred by the Commission to the Attorney General for further proceedings pursuant to §_45I2
of this chapter.
§ 4510. Compelling Attendance of Witnesses and Production of Documents Oaths,
Subpoenas.
The Commission may issue subpoenas and order discovery in aid of
investigations and hearings under this chapter. Such subpoenas shall be signed by the
Chairperson or Panel Chair and may be served by any sheriff, -deputy sheriff, constable or any
member of the Commission or employee of the Division of I luman Relations and return thereof
shall be made to the Commission. Such subpoenas and discovery may be ordered to the same
extent and subject to the same limitations as would apply if the subpoenas or discovery were
ordered or served in aid of a civil action in the Superior Court.
At any public hearing, any member of the Commission may administer oaths to
all witnesses who may be called before the Commission.
(e) Witnesses summoned by a subpoena under this chapter shall be entitled to the
same witness and mileage fees as witnesses in proceedings in Superior Court.
(d) Where any person fails or neglects to attend and testify or answer any lawful
inquiry or to produce records, documents or other evidence. if it is in such person's power to do
so, in obedience to the subpoena or other lawful order under such subsection (a), the Attorney
General, on behalf of the Commission, shall petition the Superior Court in the county where such
person resides or conducts business fur an order requiring such person to appear betbre the
Commission to produce evidence if so ordered or to give testimony pertaining to the matter
Chapter 350
Vol. 70
under investigation or in question. Any failure to obey such order may be punished by the court
as being in contempt of court.
(e) Criminal penalties -
(I) Any person who willfully fails or neglects to attend and testify or to
answer any lawful inquiry or to produce records, documents or other evidence, if it is in
such persons power to do so, in obedience to the subpoena or other lawful order under
subsection (a) of this section, shall, in each instance be fined not more than $2.500 or
imprisoned not more than one year, or both.
(2) Any person who, with intent thereby to mislead another person in any
proceeding under this chapter:
(A) makes or causes to be made any false entry or statement of fact in
any report, account, record or other document produced pursuant to subpoena or
other lawful order under subsection (a) of this section;
(IS) - willfully neglects or fails to make or cause to be made full, true
and correct entries in such reports, accounts, records or other documents; or
(C) willfully mutilates, alters or by any other means falsities any
documentary evidence; shall in each instance be lined not more than $2,500 or
imprisoned not more than one year, or both.
§ 4511. .Judicial Review.
Any party aggrieved by an order for relief under § 4508 of this chapter granting or
denying, in whole or in part. the relief sought, may obtain a review of such order in the Superior
Court in the county in which the discriminatory public accommodations practice is alleged to
have occurred, pursuant to the civil rules of that court and the Administrative Procedures Act.
Filing of the petition for review shall be not later than 30 days after the order is entered.
Any party to the proceeding before the Panel may intervene in the Superior Court
in the appeal process.
No objection not made before the Panel shall be considered by the Court, unless
the failure or neglect to urge such objection is excused because of extraordinary circumstances or
when the interests of justice so require.
§ 4512. hiforcement by the Attorney General.
Whenever the Attorney General has reasonable cause to believe that any person or
group of persons is engaging in a pattern of discriminatory public accommodation practices, that
any person or group of persons has been denied any of the rights granted by this chapter and such
denial raises an issue of general public importance or that any party to a conciliation agreement
has breached such agreement. the Attorney General may commence a civil action in the Superior
Court, Court of Chancery or both in any county of the State for appropriate relief including. but
not limited to, equitable relief, monetary damages, reasonable attorneys fees, costs and expenses.
To vindicate the public interest, the court may assess a civil penalty to be paid to the Special
Administration Fund in an amount not exceeding $25,000 for a first violation of this section and
in an amount not exceeding $50,000 for any subsequent violation of this section.
When a civil action is initiated by the Attorney General pursuant to this section,
no court shall charge fees of any kind in such proceeding to the Attorney General, the
Commission or any of its members."
Section 2. Amend § 3005(a). fitle 31. Deltmare Code, by striking subsections (1) and
(2) in their entirety and substituting in lieu thereof the following:
I ) All civil penalties assessed and collected pursuant to Chapter 45 ot 46 of
Title 6.
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784
(2) Costs, attorneys fees and expenses awarded to the Commission pursuant
to Chapter 45 or 46 of Title 6."
Section 3. Amend §3005(b) (2), Title 31, Delaware Code, by striking the words "§§ 4605
and 4606 of Title 6" in the first sentence and replacing them with the words "in Chapters 45 or
46 of Title 6".
Section 4. If any clause, sentence, subsection, provision or part of this Act shall be
adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction,
such judgment shall not impair, invalidate or affect the remainder of this Act which shall remain
in full force and effect, and the application of the provision in question to other persons not
similarly situated or to other circumstances shall not be affected thereby.
Section 5. This Act shall be effective on July 1, 1996.
Approved May 30, 1996
CHAPTER 351
FORMERLY
SENATE BILL NO. 195
AS AMENDED BY SENATE AMENDMENT NO. 2
AN ACT TO AMEND TITLE 18 OF THE DELAWARE INSURANCE CODE RELATING TO
LONG-TERM CARE INSURANCE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF TI-IE STATE OF
DELAWARE:
Section 1. Amend Chapter 71, Title 18 of the Delaware Code by redesignating the
existing §§7106, 7107, and 7108 as §§7107, 7108 and 7109, respectively, and by adding thereto
a new section to read as follows:
"7106. Nonforfeiture benefit requirement.
No insurer may issue or deliver a long-term care insurance policy in this state
unless the insurer offers to the applicant the option to purchase a policy that provides for
nonforfeiture benefits.
The Insurance Commissioner shall promulgate rules and regulations which
specify the types of nonforfeiture benefits to be included in the policies and certificates,
the standards for the benefits, and the date nonforfeiture benefits must commence."
Section 2. This Act shall become effective six months afier its enactment into law.
Approved June 5, 1996
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Vol. 70
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CHAPTER 352
FORMERLY
HOUSE BILL NO. 399
AN ACT TO AMEND CHAPTER 21 OF TITLE 29 RELATING TO THE GOVERNOR'S
AUTHORITY TO PROCLAIM SPECIAL DAYS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Amend Title 29, Chapter 21 of the Delaware Code by adding a new section
2112, as follows:
§ 2112 Father's Day Proclamation.
"The Governor may issue annually a proclamation calling upon state
officials to display the United States flag on all state and school buildings, and the people
of this state to display the flag at their homes, lodges, churches and places of business and
other suitable places, on the third Sunday in June, known as Father's Day, as a public
expression of love and reverence for the fathers of our state and as an inspiration for
better homes and closer ties between fathers and the state."
Approved June 5, 1996
CHAPTER 353
FORMERLY
HOUSE BILL NO. 359
AS AMENDED BY HOUSE AMENDMENT NO. I
AND SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 4 OF THE DELAWARE CODE RELATING TO ALCOHOLIC
LIQUORS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section I. Amend Subsection (40) of Section 101 of Title 4 of the Delaware Code by
striking subsection (40) in its entirety and by substituting in lieu thereof the following:
"(40) 'Spirits, wine, and beer tasting' means the consumption of spirits, wine, and
beer for the purpose of sampling for prospective purchase only, The quantity of any
individual spirit, wine, and beer sampled is not to exceed one (1) ounce for wine and beer
and one-half (112) ounce for spirits. Spirits must be 80 proof or less and beer must be a
new product line in the marketplace less than I year."
Section 2. Amend Section 525 of Title 4 of the Delaware Code by striking Section 525
in its entirety and by substituting in lieu thereof the following:
"Section 525. Spirits, Wine, and Beer Tasting.
A license to permit spirits, wine, and beer tasting may be granted by the
Commission to any person holding a license under this title as a retailer. Spirits,
wine, and beer tasting may take place only in a separate portion of a licensee's
premises where alcoholic beverages are not sold. The separate portion of the
premises shall be an area designated for spirits, wine, and beer tasting by the
Commission. No charge may be made for the spirits, wine, and beer tasting."
Section 3. Amend §§5 I 2A(e) and 554(ee), Title 4, Delaware by deleting "wine tasting"
as it appears in each and by inserting in lieu thereof in each "spirits, wine, and beer tasting",
Approved June 5, 1996
786 vol. 70
CHAPTER 354
FORMERLY
HOUSE BILL NO. 487
AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO HABEAS
CORPUS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Amend Title 10 of the Delaware Code by striking § 6901 in its entirety and by
inserting in lieu thereof a new section to read:
"§ 6901. Jurisdiction To Grant Writs.
The writ of habeas corpus shall be awarded and issued by the Superior Court
except in cases involving child support enforcement in which case the writ shall be
awarded and issued by the Family Court. The writ may also be awarded and issued by
the Family Court in other cases which are otherwise within its jurisdiction. A petition for
the issuance of a writ of habeas corpus may be reviewed and decided by the judge issuing
the order incarcerating the petitioner in the first instance."
Section 2. Amend § 6903 of Title 10 of the Delaware Code by deleting subsection (a) in
its entirety and by inserting in lieu thereof a new subsection to read:
"(a) A person committed by any judge of this State, a justice of the peace, or by
the mayor or any Alderman of any city or town, for a contempt, except a contempt issued
by the Family Court in a case involving a child support order, shall be entitled to the writ
of habeas corpus in the Superior Court. A person committed by the Family Court in a
case involving a child support order shall be entitled to the writ of habeas corpus in the
Family Court of the State of Delaware."
Approved June 5, 1996
CHAPTER 355
FORMERLY
HOUSE BILL NO. 550
AS AMENDED BY HOUSE AMENDMENT NO. I
AN ACT TO AMEND TITLE 6, DELAWARE CODE, RELATING TO NEW HOME
CONSTRUCTION AND THE COMPLETION OF UNFINISHED WORK.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF TI-LE STATE OF
DELAWARE:
Section I. Amend Subtitle II, Title 6 of the Delaware Code, by inserting a new Chapter
36 to read:
"CHAPTER 36. NEW HOME BUYERS PROTECTION ACT.
§ 3601. Definitions.
As used in this subchapter:
a) 'New Residential Real Property' means any estate or interest in real
property improved by a new dwelling not previously occupied and constructed for use
as a residence.
'Seller' means any individual, partnership, corporation, or trustee transferring
new residential property or a new dwelling.
'Buyer' means any individual, partnership, corporation, or trustee purchasing
any estate or interest in a new residential real property or new dwelling.
'New Dwelling' means a new multi-family, single family, or townhouse
dwelling not previously occupied and constructed for use as a residence.
'Vendor' means any person, firm, partnership, corporation, or other entity that
contracts to sell new dwellings or new residential real property.
'Unfinished Work' means a condition in a new residential real property or new
dwelling which fails to comply with the work agreed upon by the vendor and/or seller in
the specifications, contract terms, and applicable building codes.
'Final Settlement' means the time at which the parties have signed and
delivered all papers and consideration to convey title to the estate or interest in a new
residential real property or new dwelling.
§ 3602. New home construction - unfinished work and the escrow of monies.
If any unfinished work is discovered prior to or at the time of the previously
agreed upon final settlement date on new residential real property or a new dwelling, the
vendor and/or seller shall be required to set aside from the proceeds of the sale, a sum of
money equal to the contractual cost required to complete any such unfinished work. If
the contract does not set forth the cost, the escrowed amount shall be the fair market
value of completing said unfinished work. The escrow agreement shall specify the
unfinished work at issue.
Said monies shall be held in escrow for no longer than thirty (30) days
following the completion of the unfinished work. No buyer may refuse to release monies
escrowed pursuant to this section for unfinished work not specified pursuant to
subsection (a) of this section.
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If the unfinished work specified at the final settlement has not been remedied
upon the expiration of ninety (90) days from the date of final settlement or a date agreed
upon by the parties and set forth in the escrow agreement, the monies held in escrow
pursuant to this section shall be released to the buyer.
Notwithstanding the above, this section shall apply only when the estimated
cost to complete said unfinished work equals one percent (1%) or more of the contract
price or when the aggregate estimated costs of completing all unfinished work equals one
percent (1%) or more of the contract price.
This section shall not apply when a buyer unilaterally requests that settlement
take place on a date prior to the previously agreed upon final settlement date.
To the extent the seller/vendor and the buyer agree that the buyer may
withhold, at the final settlement, monies otherwise subject to escrow under this section,
such an arrangement shall be deemed in compliance with this section.
§3603. Remedies and Penalties
In any successful action brought by a buyer for failure to acknowledge unfinished
work subject to the escrow provisions of § 3602 or failure to escrow the contractual cost or the
fair market value required to complete the unfinished work subject to the escrow provisions of §
3602, the court may order the seller/vendor to pay the amount that should have been escrowed
and the costs of litigation. To the extent a seller/vendor proves that a buyer's request to escrow
under § 3602 was not valid, the buyer may be liable for the seller/vendor's costs of litigation.
Failure to comply with a buyer's valid request to escrow under § 3602 of this chapter
shall constitute an unlawful practice in violation of § 2513 of this title and willful violations of §
3602 shall be punishable in accordance with § 2513(c) and/or § 2581 of this title. The Attorney
General shall have the same authority to enforce, remedy and carry out the provisions of this
chapter as is provided by § 2517 of title 29, and §§ 2511-2527 and §§ 2531-2536 of Title 6.
The remedies and penalties provided for in this section are not exclusive and shall be
in addition to any other procedures, rights or remedies which exist with respect to any other
provisions of law including but not limited to State and/or Federal criminal prosecutions and/or
common law statutory actions brought by private parties."
Section 2. This Act shall be effective sixty days after enactment into law.
Approved June 7, 1996
Chapter 355
Vol. 70
CHAPTER 356
FORMERLY
SENATE BILL NO. 350
AN ACT TO AMEND TITLE 5 OF THE DELAWARE CODE, RELATING TO MORTGAGE
LOAN BROKERS AND LICENSED LENDERS
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Amend §2108, Title 5, Delaware Code, by striking said section in its
entirety and substituting in lieu thereof a new subsection 2108 to read as follows:
2108. Surety Bonds and Irrevocable Letters of Credit
(a) Surety Bonds
(1) Every licensee shall file with the Commissioner, in a form
satisfactory to the Commissioner, an original corporate surety bond, with surety
provided by a corporation authorized to transact business in this State, in the
principal sum of $25,000.
(2) No bond shall be accepted unless the following requirements are
satisfied:
the term of the bond shall be commensurate with the
license period or continuous;
the expiration date of the bond shall not be earlier
than midnight of the date on which the license expires; and
the bond shall run to the State, for the benefit of the
Office of the State Bank Commissioner and for the benefit of all
consumers injured by any wrongful act, omission, default, fraud or
misrepresentation by a licensee in the course of its activity as a
licensee. Compensation under the bond shall be for amounts
which represent actual losses and shall not be payable for claims
made by business creditors, third-party service providers, agents or
persons otherwise in the employ of the licensee. Surety claims
shall be paid to the Office of the State Bank Commissioner by the
insurer not later than 90 days after receipt of a claim. Claims paid
after 90 days shall be subject to daily interest at the legal rate. The
aggregate liability of the surety on the bond, exclusive of any
interest which accrues for payments made after 90 days, shall in no
event exceed the amount of such bond.
(3) If the licensee changes its surety company or the bond is
otherwise amended, the licensee shall immediately provide
the Commissioner with the amended original copy of the
surety bond. No cancellation of an existing bond by a surety
shall be effective unless written notice of its intention to
cancel is filed with the Commissioner at least thirty (30) days
before the date upon which cancellation shall take effect.
(4) The Commissioner may require potential claimants to provide
such documentation and affirmations as the Commissioner
shall determine to be necessary and appropriate. In the event
the Commissioner determines that multiple consumers have
been injured by a licensee, the Commissioner shall cause a
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790
notice to be published for the purpose of identifying all
relevant claims.
When a surety company receives a claim against the bond of a
licensee, it shall immediately notify the Commissioner and
shall not pay any claim unless and until it receives notice to
do so from the Commissioner.
The Commissioner shall have a period of two calendar years
after the effective date of cancellation or termination of the
surety bond by the insurer to submit claims to the insurer.
(b) Irrevocable Letters of Credit
In lieu of requiring the filing of a surety bond, the Commissioner
may, at the Commissioner's discretion, accept from a licensee an
irrevocable letter of credit.
( I ) Such irrevocable letters of credit shall be provided by an
insured depository institution (as defined in the Federal
Deposit Insurance Act at 12 U.S.C. §1813(c)) acceptable to
the Commissioner, in a form satisfactory to the Commissioner
in the principal sum of $25,000.
(2) No irrevocable letter of credit shall be accepted unless the
following requirements are satisfied:
The irrevocable letter of credit shall run to the State,
for the benefit of the Office of the State Bank
Commissioner and for the benefit of all consumers injured
by the wrongful act, omission, default, fraud or
misrepresentation by a licensee in the course of its activity
as a licensee. Compensation under the irrevocable letter
of credit shall be for amounts which represent actual
losses and shall not be payable for claims made by
business creditors, third-party service providers, agents or
persons otherwise in the employ of the licensee. The
aggregate liability of the insured depository institution
issuing the irrevocable letter of credit shall in no event
exceed the amount of such irrevocable letter of credit; and
Draws upon such irrevocable letters of credit shall
be available by sight drafts thereunder, in amounts
determined by the Commissioner, up to the aggregate
amount of the irrevocable letter of credit. Such drafts
shall be paid in accordance with §5-112(1) of Title 6 of
the Delaware Code.
(3) The Commissioner may require potential claimants to provide
such documentation and affirmations as the Commissioner shall
determine to be necessary and appropriate. In the event the
Commissioner determines that multiple consumers have been
injured by a licensee, the Commissioner shall cause a notice to
be published for the purpose of identifying all relevant claims.
(4) The Commissioner may refuse release of an irrevocable letter of
credit, following the surrender of a license, up to two (2) years
after the effective date of such termination of licensure."
Section 2. Amend §2208, Title 5, Delaware Code, by striking said section in its entirety
and substituting in lieu thereof a new section 2208 to read as follows:
Chapter 356
Vol. 70
Chapter 356
Vol. 70
"§2208 Letters
(a) Surety Bonds
(1) Every licensee shall file with the Commissioner, in a form
satisfactory to the Commissioner, an original corporate surety
bond, with surety provided by a corporation authorized to
transact business in this State, in the principal sum to be
determined by the Commissioner, except that the bond amount
shall not be less than $50,000 or more than $200,000. In
determining the amount of the bond required for a licensee, the
Commissioner shall consider, among other things:
the dollar value of the lender's Delaware business;
the dollar value of advance fees collected by the
lender;
the periods for which such fees are held before a loan
is funded; and
such other and further criteria as the Commissioner
may deem necessary and appropriate.
(2) No bond shall be accepted unless the following requirements are
satisfied:
( i) the aggregate value of the bond shall be equal to or
greater than the amount determined in accordance with
subsection (a)(1) of this section;
the term of the bond shall be commensurate with the
license period or continuous;
the expiration date of the bond shall not be earlier than
midnight of the date on which the license expires; and
the bond shall run to the State, for the benefit of
the Office of the State Dank Commissioner and for the
benefit of all consumers injured by any wrongful act,
omission, default, fraud or misrepresentation by a
licensee in the course of its activity as a licensee.
Compensation under the bond shall be for amounts
which represent actual losses and shall not be payable
for claims made by business creditors, third-party
service providers, agents or persons otherwise in the
employ of the licensee. Surety claims shall be paid to
the Office of the State Bank Commissioner by the
insurer not later than 90 days after receipt of a claim.
Claims paid after 90 days shall be subject to daily
interest at the legal rate. The aggregate liability of the
surety on the bond, exclusive of any interest which
accrues for payments made after 90 days, shall in no
event exceed the amount of such bond.
(3) If the licensee changes its surety company or the bond is
otherwise amended, the licensee shall immediately provide
the Commissioner with the amended original copy of the
surety bond. No cancellation of an existing bond by a surety
shall be effective unless written notice of its intention to
cancel is filed with the Commissioner at least thirty (30) days
before the date upon which cancellation shall take effect.
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792 Chapter 356
Vol. 70
The Commissioner may require potential claimants to provide such
documentation and affirmations as the Commissioner may
determine to be necessary and appropriate. In the event the
Commissioner determines that multiple consumers have been
injured by a licensee, the Commissioner shall cause a notice to be
published for the purpose of identifying all relevant claims.
When a surety company receives a claim against the bond of a
licensee, it shall immediately notify the Commissioner and shall
not pay any claim unless and until it receives notice to do so from
the Commissioner.
The Commissioner shall have a period of two calendar years after
the effective date of cancellation or termination of the surety bond
by the insurer to submit claims to the insurer.
(b) Irrevocable Letters of Credit
In lieu of requiring the filing of a surety bond, the Commissioner may, at
the Commissioner's discretion, accept from a licensee an irrevocable letter of
credit.
(I) Such irrevocable letters of credit shall be provided by an insured
depository institution (as defined in the Federal Deposit Insurance
Act at 12 U.S.C. §1813(c)) acceptable to the Commissioner, in a
form satisfactory to the Commissioner in the principal sum to be
determined by the Commissioner, except that the irrevocable letter
of credit amount shall not be less than $50,000 or more than
$200,000. In determining the amount of the irrevocable letter of
credit required for a licensee, the Commissioner shall consider,
among other things:
the dollar value of the lender's Delaware business;
the dollar value of advance fees collected by the lender;
the periods for which such fees are held before a loan is
funded; and
such other and further criteria as the Commissioner may
deem necessary and appropriate.
(2) No irrevocable letter of credit shall be accepted unless the
following requirements are satisfied:
the aggregate value of the irrevocable letter of credit shall
be equal to or greater than the amount determined by
subsection (b)(1) of this section;
The irrevocable letter of credit shall run to the State, for
the benefit of the Office of the State Bank Commissioner
and for the benefit of all consumers injured by the
wrongful act, omission, default, fraud or misrepresentation
by a licensee in the course of its activity as a licensee.
Compensation under the irrevocable letter of credit shall
be for amounts which represent actual losses and shall not
be payable for claims made by business creditors,
third-party service providers, agents or persons otherwise
in the employ of the licensee. The aggregate liability of
the insured depository institution issuing the irrevocable
letter of credit shall in no event exceed the amount of such
irrevocable letter of credit; and
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(iii) Draws upon such irrevocable letters of credit shall be
available by sight drafts thereunder, in amounts
determined by the Commissioner, up to the aggregate
amount of the irrevocable letter of credit. Such drafts
shall be honored in accordance with §5-112(1) of Title 6
of the Delaware Code.
The Commissioner may require potential claimants to provide
such documentation and affirmations as the Commissioner may
determine to be necessary and appropriate. In the event the
Commissioner determines that multiple consumers have been
injured by a licensee, the Commissioner shall cause a notice to
be published for the purpose of identifying all relevant claims.
The Commissioner may refuse release of an irrevocable letter of
credit, following the surrender of a license, up to two (2) years
after the effective date of such termination of licensure."
Section 3. This Act shall become effective for licensing periods beginning January 1,
1997. Any surety bonds or letters of credit provided in advance of January 1, 1997, for licensing
periods beginning January 1, 1997, shall comply with the requirements contained herein.
Approved June 7, 1996
CHAPTER 357
FORMERLY
HOUSE BILL NO. 467
AS AMENDED BY HOUSE AMENDMENT NO. 1 AND
SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 43, TITLE 21 OF THE DELAWARE CODE RELATING
TO MOTOR VEHICLES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section I. Amend §4313(d), Title 21 of the Delaware Code by striking subsection (d) in its
entirety and substituting in lieu thereof a new subsection (d) to read as follows:
"No person shall be convicted under this section if that person possesses a statement
signed by a licensed practitioner of medicine and surgery or osteopathic medicine, or optometry,
verifying that tinted windows are medically necessary for the owner or usual operator of said
vehicle."
Approved June 10, 1996
793
794 Vol. 70
CHAPTER 358
FORMERLY
SENATE BILL NO. 247
AS AMENDED BY SENATE AMENDMENT NOS. I & 2
AN ACT TO AMEND TITLE 29 DELAWARE CODE RELATING TO THE DELAWARE
COMMISSION OF VETERANS AFFAIRS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Amend 8721(b) of Title 29 Delaware Code by striking the words "With the
concurrence of the Secretary of State,".
Section 2. Amend 8721(0 of Title 29 Delaware Code by striking the words "if
requested,"
Approved June 10, 1996
CHAPTER 359
FORMERLY
SENATE BILL NO. 234
AS AMENDED BY SENATE AMENDMENT NO. 2
AN ACT TO AMEND TITLE 5 OF THE DELAWARE CODE BY ADDING THERETO A
NEW SECTION GRANTING A SELF-ANALYSIS PRIVILEGE TO DEPOSITORY
INSTITUTIONS AND THEIR AFFILIATES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE:
Section 1. Amend Chapter 9, Title 5 of the Delaware Code, by adding thereto a new
Section which Section shall read in its entirety as follows:
"§940. Self-Analysis Privilege for Depository Institutions and Affiliates.
(a) Definitions. For purposes of this Section, the following words and phrases shall
have the meanings ascribed to them herein:
'Depository Institution' means a state-chartered or federally-chartered
financial institution that is located in this State and is authorized to maintain deposit or share
accounts.
'Depository Institution Affiliate' means any corporation whose stock is at
least eighty percent (80%) owned by a Depository Institution or the holding company of a
Depository Institution.
'Compliance Review Committee' means a person or persons assigned by a
Depository Institution or a Depository Institution Affiliate to test, review or evaluate its conduct,
transactions or potential transactions for the purpose of monitoring and improving or enforcing
compliance with (i) safe, sound and fair lending practices, (ii) financial reporting to federal or
state regulatory agencies, (iii) the Depository Institution's or Depository Institution Affiliate's
own policies and procedures, or (iv) federal or state statutory or regulatory requirements.
'Compliance Review Document' means any document prepared for or
created by a Compliance Review Committee for its exclusive use.
'Person' means an individual, a group of individuals, a board committee,
or a corporation, partnership, firm, association, trust, pool, syndicate, sole proprietorship,
unincorporated association or any other form of entity not specifically listed herein.
(b) Privilege. Notwithstanding any provisions of Delaware common or statutory
law to the contrary, except as provided in subsection (c) of this section:
Compliance Review Documents shall be confidential and shall not be
discoverable or admissible into evidence in any civil action;
Compliance Review Documents delivered to a federal, state or foreign
governmental or regulatory agency shall remain confidential and shall not be discoverable or
admissible in any civil action; and
No person serving on a Compliance Review Committee or acting at the
request of a Compliance Review Committee shall be required to testify in any civil action (i) as
to the contents or conclusions of any Compliance Review Document or (ii) as to the actions
taken by a Compliance Review Committee.
(c) Limitations.
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796
This section shall not apply to any person serving on or at the request of a
Compliance Review Committee in connection with such person's duties pursuant to the
Depository Institution's or Depository Institution Affiliates' bylaws or operations manual,
management responsibility for the operations, records, employees or activities being examined or
evaluated by the Compliance Review Committee.
This section shall not be construed to limit the discovery or admissibility
in any civil action of any documents that are not Compliance Review Documents.
This section shall not apply if, after an in camera review by the court
consistent with applicable rules of procedure, the court determines that the compliance review
was initiated or used to enable persons serving on the Compliance Review Committee, or the
Depository Institution or the Depository Institution Affiliate which created such Committee, to
commit or plan to commit what the Committee knew or reasonably should have know to be a
crime."
Approved June 10, 1996
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Vol. 70 797
CHAPTER 360
FORMERLY
HOUSE BILL NO. 528
AN ACT TO AMEND CHAPTER 18, TITLE 6 OF THE DELAWARE CODE RELATING TO
THE CREATION, REGULATION, OPERATION AND DISSOLUTION OF
DOMESTIC LIMITED LIABILITY COMPANIES AND THE REGISTRATION AND
REGULATION OF FOREIGN LIMITED LIABILITY COMPANIES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (three-fifths of all members elected to each house thereof concurring
therein):
Section I. Amend § 18-206(a), Chapter 18, Title 6 of the Delaware Code by
adding immediately following the words "any restated certificate," the words "any certificate of
conversion to limited liability company, any certificate of transfer, any certificate of limited liability
company domestication,".
Section 2. Amend § 18-206(a)(1), Chapter 18, Title 6 of the Delaware Code by
adding immediately following the words "the restated certificate" the words ", the certificate of
conversion to limited liability company, the certificate of transfer, the certificate of limited liability
company domestication".
Section 3. Amend § 18-206(b), Chapter 18, Title 6 of the Delaware Code by
adding immediately following the first usage of the words "acts as a certificate of cancellation," in
the second sentence of said subsection, the words "or a certificate of transfer," by adding
immediately following the second usage of the words "acts as a certificate of cancellation," in the
second sentence of said subsection, the words "or a certificate of transfer," and by adding the
following sentences immediately following the second sentence of said subsection:
"Upon the filing of a certificate of limited liability company domestication, or upon
the future effective date or time of a certificate of limited liability company
domestication, the entity filing the certificate of limited liability company
domestication is domesticated as a limited liability company with the effect
provided in § 18-212 of this chapter. Upon the filing of a certificate of conversion
to limited liability company, or upon the future effective date or time of a certificate
of conversion to limited liability company, the entity filing the certificate of
conversion to limited liability company is converted to a limited liability company
with the effect provided in § 18-214 of this chapter."
Section 4. Amend § 18-206(c), Chapter 18, Title 6 of the Delaware Code by
adding immediately following the words "a restated certificate" the words ", a certificate of
conversion to limited liability company, a certificate of transfer, a certificate of limited liability
company domestication".
Section 5. Amend § 18-207, Chapter 18, Title 6 of the Delaware Code by
adding immediately prior to the punctuation mark "." at the end of the only sentence of said section
the words "and which are permitted to be set forth in a certificate of formation by § 18-215(b) of
this chapter"
Section 6. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 18-212" to read as follows:
"§ 18-212. Domestication of non-United States entities.
(a) As used in this section, "non-United States entity" means a foreign limited
liability company (other than one formed under the laws of a state), or a corporation, a
business trust or association, a real estate investment trust, a common-law trust, or any other
unincorporated business, including a partnership (whether general (including a registered
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limited liability partnership) or limited (including a registered limited liability limited
partnership)), formed, incorporated, created or that otherwise came into being under the laws
of any foreign county or other foreign jurisdiction (other than any state).
(b) Any non-United States entity may become domesticated as a limited
liability company in the State of Delaware by complying with subsection (g) of this section
and filing in the Office of the Secretary of State in accordance with § 18-206 of this chapter:
A certificate of limited liability company domestication that has
been executed by 1 or more authorized persons in accordance with § 18-204 of this
chapter; and
A certificate of formation that complies with § 18-201 of thi:: chapter
and has been executed by 1 or more authorized persons in accordance with § 18-204
of this chapter.
(c) The certificate of limited liability company domestication shall state:
The date on which and jurisdiction where the non-United States
entity was first formed, incorporated, created or otherwise came into being;
The name of the non-United States entity immediately prior to the
filing of the certificate of limited liability company domestication;
The name of the limited liability company as set forth in the
certificate of formation filed in accordance with subsection (b) of this section;
The future effective date or time (which shall be a date or time
certain) of the domestication as a limited liability company if it is not to be effective
upon the filing of the certificate of limited liability company domestication and the
certificate of formation; and
The jurisdiction that constituted the seat, siege social, or principal
place of business or central administration of the non-United States entity, or any
other equivalent thereto under applicable law, immediately prior to the filing of the
certificate of limited liability company domestication.
(d) Upon the filing in the Office of the Secretary of State of the certificate of
limited liability company domestication and the certificate of formation or upon the future
effective date or time of the certificate of limited liability company domestication and the
certificate of formation, the non-United States entity shall be domesticated as a limited
liability company in the State of Delaware and the limited liability company shall thereafter
be subject to all of the provisions of this chapter, except that notwithstanding § 18-201 of
this chapter, the existence of the limited liability company shall be deemed to have
commenced on the date the non-United States entity commenced its existence in the
jurisdiction in which the non-United States entity was tirst formed, incorporated, created or
otherwise came into being.
(c) The domestication of any non-United States entity as a limited liability
company in the State of Delaware shall not be deemed to affect any obligations or liabilities
of the non-United States entity incurred prior to its domestication as a limited liability
company in the State of Delaware, or the personal liability of any person therefor.
(0 The filing of a certificate of limited liability company domestication shall
not affect the choice of law applicable to the non-United States entity, except that from the
effective date or time of the domestication, the law of the State of Delaware, including the
provisions of this chapter, shall apply to the non-United States entity to the same extent as if
the non-United States entity had been formed as a limited liability company on that date.
(g) Prior to filing a certificate of limited liability company domestication with
the Office of the Secretary of State, a limited liability company agreement shall be approved
in the manner provided for by the document, instrument, agreement or other writing, as the
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799
case may be, governing the internal affairs of the non-United States entity and the conduct of
its business or by applicable non-Delaware law, as appropriate.
(h) When any domestication shall have become effective under this section, for
all purposes of the laws of the State of Delaware, all of the rights, privileges and powers of
the non-United States entity that has been domesticated, and all property, real, personal and
mixed, and all debts due to such non-United States entity, as well as all other things and
causes of action belonging to such non-United States entity, shall be vested in the domestic
limited liability company and shall thereafter be the property of the domestic limited liability
company as they were of the non-United States entity immediately prior to its domestication,
and the title to any real property vested by deed or otherwise in such non-United States
entity shall not revert or be in any way impaired by reason of this chapter; but all rights of
creditors and all liens upon any property of such non-United States entity shall be preserved
unimpaired, and all debts, liabilities and duties of the non-United States entity that has been
domesticated shall thenceforth attach to the domestic limited liability company, and may be
enforced against it to the same extent as if said debts, liabilities and duties had been incurred
or contracted by the domestic limited liability company."
Section 7. Amend Subchapter 11, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 18-213" to read as follows:
"§ 18-213. Transfer and continuance of domestic limited liability companies.
Upon compliance with the provisions of this section, any limited liability
company may transfer to any jurisdiction, other than any state, that permits the transfer to or
domestication or continuance in such jurisdiction of a limited liability company.
Notwithstanding anything to the contrary in this chapter or a limited liability
company agreement, a transfer described in subsection (a) of this section shall be approved
in writing by all of the managers and all of the members. If all of the managers and all of the
members of the limited liability company shall approve the transfer described in subsection
(a) of this section, a certificate of transfer, executed in accordance with § 18-204 of this
chapter, shall be filed in the Office of the Secretary of State in accordance with § 18-206 of
this chapter. The certificate of transfer shall state:
The name of the limited liability company and, if it has been
changed, the name under which it was originally filed;
The date of the filing of its original certificate of formation with the
Secretary of State;
The jurisdiction to which the limited liability company will transfer;
The future effective date or time (which shall be a date or time
certain) of the transfer to the jurisdiction specified in subsection (b)(3) of this
section if it is not to be effective upon the filing of the certificate of transfer;
That the transfer of the limited liability company has been approved
in accordance with the provisions of this section;
The agreement of the limited liability company that it may be served
with process in the State of Delaware in any action, suit or proceeding for
enforcement of any obligation of the limited liability company arising while it was a
limited liability company of the State of Delaware, and that it irrevocably appoints
the Secretary of State as its agent to accept service of process in any such action,
suit or proceeding; and
The address to which a copy of the process referred to in subsection
(b)(6) of this section shall be mailed to it by the Secretary of State. In the event of
service hereunder upon the Secretary of State, the procedures set forth in § 18-
911(c) of this chapter shall be applicable, except that the plaintiff in any such action,
suit or proceeding shall furnish the Secretary of State with the address specified in
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this subsection and any other address that the plaintiff may elect to furnish, together
with copies of such process as required by the Secretary of State, and the Secretary
of State shall notify the limited liability company that has transferred out of the
State of Delaware at all such addresses furnished by the plaintiff in accordance with
the procedures set forth in § 18-911(c) of this chapter.
Upon the filing in the Office of the Secretary of State of the certificate of
transfer or upon the future effective date or time of the certificate of transfer and payment to
the Secretary of State of all fees prescribed in this chapter, the Secretary of State shall certify
that the limited liability company has filed all documents and paid all fees required by this
chapter, and thereupon the limited liability company shall cease to exist as a limited liability
company of the State of Delaware. Such certificate of the Secretary of State shall be prima
facie evidence of the transfer by such limited liability company out of the State of Delaware.
The transfer of a limited liability company out of the State of Delaware in
accordance with this section shall not be deemed to affect any obligations or liabilities of the
limited liability company incurred prior to such transfer or the personal liability of any
person incurred prior to such transfer, nor shall it be deemed to affect the choice of law
applicable to the limited liability company with respect to matters arising prior to such
transfer."
Section 8. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 18-214" to read as follows:
"§ 18-214 Conversion of certain entities to a limited liability company.
(a) As used in this section, the term "other entity" means a business trust or
association, a real estate investment trust, a common-law trust, or any other unincorporated
business, including a partnership (whether general (including a registered limited liability
partnership) or limited (including a registered limited liability limited partnership)) or a
foreign limited liability company.
(b) Any other entity may convert to a domestic limited liability company by
complying with subsection (h) of this section and filing in the Office of the Secretary of
State in accordance with § 18-206 of this chapter:
A certificate of conversion to limited liability company that has been
executed by 1 or more authorized persons in accordance with § 18-204 of this
chapter; and
A certificate of formation that complies with § 18-201 of this chapter
and has been executed by 1 or more authorized persons in accordance with § 18-204
of this chapter.
(c) The certificate of conversion to limited liability company shall state:
(I) The date on which and jurisdiction where the other entity was first
created, formed, incorporated or otherwise came into being and, if it has changed, its
jurisdiction immediately prior to its conversion to a domestic limited liability
company;
(2) The name of the other entity immediately prior to the filing of the
certificate of conversion to limited liability company;
The name of the limited liability company as set forth in its
certificate of formation filed in accordance with subsection (b) of this section; and
The future effective date or time (which shall be a date or time
certain) of the conversion to a limited liability company if it is not to be effective
upon the filing of the certificate of conversion to limited liability company and the
certificate of formation.
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801
Upon the filing in the Office of the Secretary of State of the certificate of
conversion to limited liability company and the certificate of formation or upon the future
effective date or time of the certificate of conversion to limited liability company and the
certificate of formation, the other entity shall be converted into a domestic limited liability
company and the limited liability company shall thereafter be subject to all of the provisions
of this chapter, except that notwithstanding § 18-201 of this chapter, the existence of the
limited liability company shall be deemed to have commenced on the date the other entity
commenced its existence in the jurisdiction in which the other entity was first created,
formed, incorporated or otherwise came into being.
The conversion of any other entity into a domestic limited liability company
shall not be deemed to affect any obligations or liabilities of the other entity incurred prior to
its conversion to a domestic limited liability company, or the personal liability of any person
incurred prior to such conversion.
(1) When any conversion shall have become effective under this section, for all
purposes of the laws of the State of Delaware, all of the rights, privileges and powers of the
other entity that has converted, and all property, real, personal and mixed, and all debts due
to such other entity, as well as all other things and causes of action belonging to such other
entity, shall be vested in the domestic limited liability company and shall thereafter be the
property of the domestic limited liability company as they were of the other entity that has
converted, and the title to any real property vested by deed or otherwise in such other entity
shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors
and all liens upon any property of such other entity shall be preserved unimpaired, and all
debts, liabilities and duties of the other entity that has converted shall thenceforth attach to
the domestic limited liability company, and may be enforced against it to the same extent as
if said debts, liabilities and duties had been incurred or contracted by it.
Unless otherwise agreed, or as required under applicable non-Delaware law,
the converting other entity shall not be required to wind up its affairs or pay its liabilities and
distribute its assets, and the conversion shall not be deemed to constitute a dissolution of
such other entity.
Prior to filing a certificate of conversion to limited liability company with
the Office of the Secretary of State, a limited liability company agreement shall be approved
in the manner provided for by the document, instrument, agreement or other writing, as the
case may be, governing the internal affairs of the other entity and the conduct of its business
or by applicable law, as appropriate.
The provisions of this section shall not be construed to limit the
accomplishment of a change in the law governing, or the domicile of, an other entity to the
State of Delaware by any other means provided for in a limited liability company agreement
or other agreement or as otherwise permitted by law, including by the amendment of a
limited liability company agreement or other agreement."
Section 9. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 18-215" to read as follows:
"§18-215 Series of members, managers or limited liability company
interests.
A limited liability company agreement may establish or provide for the
establishment of designated series of members, managers or limited liability company
interests having separate rights, powers or duties with respect to specified property or
obligations of the limited liability company or profits and losses associated with specified
property or obligations, and, to the extent provided in the limited liability company
agreement, any such series may have a separate business purpose or investment objective:
Notwithstanding anything to the contrary set forth in this chapter or under
other applicable law, in the event that a limited liability company agreement creates one or
more series, and if separate and distinct records are maintained for any such series and the
802 Chapter 360
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assets associated with any such series are held and accounted for separately from the other
assets of the limited liability company, or any other series thereof, and if the limited liability
company ngreement so provides, and notice of the limitation on liabilities of a series as
referenced in this subsection is set forth in the certificate of formation of the limited liability
company, then the debts, liabilities and obligations incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against the assets of such
series only, and not against the assets of the limited liability company generally. The fact
that a certificate of formation that contains the foregoing notice of the limitation on liabilities
of a series is on file in the Office of the Secretary of State shall constitute notice of the
limitation on liabilities of such series.
Notwithstanding § 18-303(a) of this chapter, under a limited liability
company agreement or under another agreement, a member or manager may agree to be
obligated personally for any or all of the debts, obligations and liabilities of one or more
series.
A limited liability company agreement may provide for classes or groups of
members or managers associated with a series having such relative rights, powers and duties
as the limited liability company agreement may provide, and may make provision for the
future creation in the manner provided in the limited liability company agreement of
additional classes or groups of members or managers associated with the series having such
relative rights, powers and duties as may from time to time be established, including rights,
powers and duties senior to existing classes and groups of members or managers associated
with the series. A limited liability company agreement may provide for the taking of an
action, including the amendment of the limited liability company agreement, without the
vote or approval of any member or manager or class or group of members or managers,
including an action to create under the provisions of the limited liability company agreement
a class or group of the series of limited liability company interests that was not previously
outstanding. A limited liability company agreement may provide that any member or class
or group of members associated with a series shall have no voting rights.
A limited liability company agreement may grant to all or certain identified
members or managers or a specified class or group of the members or managers associated
with a series the right to vote separately or with all or any class or group of the members or
managers associated with the series, on any matter. Voting by members or managers
associated with a series may be on a per capita, number, financial interest, class, group or
any other basis.
Unless otherwise provided in a limited liability company agreement, the
management of a series shall be vested in the members associated with such series in
proportion to the then current percentage or other interest of members in the profits of the
series owned by all of the members associated with such series, the decision of members
owning more than 50 percent of the said percentage or other interest in the profits
controlling; provided, however, that if a limited liability company agreement provides for
the management of the series, in whole or in part, by a manager, the management of the
series, to the extent so provided, shall be vested in the manager who shall be chosen in the
manner provided in the limited liability company agreement. The manager of the series
shall also hold the offices and have the responsibilities accorded to him as set forth in a
limited liability company agreement. A series may have more than 1 manager. Subject to
§18-602 of this chapter, a manager shall cease to be a manager with respect to a series as
provided in a limited liability company agreement. Except as otherwise provided in a
limited liability company agreement, any event under this chapter or in a limited liability
company agreement that causes a manager to cease to be a manager with respect to a series
shall not, in itself, cause such manager to cease to be a manager of the limited liability
company or with respect to any other series thereof.
Notwithstanding § 18-606 of this chapter, but subject to subsections (h) and
(k) of this section, and unless otherwise provided in a limited liability company agreement,
at the time a member associated with a series that has been established in accordance with
subsection (b) of this section becomes entitled to receive a distribution with respect to such
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series, he has the status of, and is entitled to all remedies available to, a creditor of the series,
with respect to the distribution. A limited liability company agreement may provide for the
establishment of a record date with respect to allocations and distributions with respect to a
series.
(h) Notwithstanding § 18-607(a) of this chapter, a limited liability company
may make a distribution with respect to a series that has been established in accordance with
subsection (b) of this section; provided that a limited liability company shall not make a
distribution with respect to a series that has been established in accordance with subsection
(b) of this section to a member to the extent that at the time of the distribution, after giving
effect to the distribution, all liabilities of such series, other than liabilities to members on
account of their limited liability company interests with respect to such series and liabilities
for which the recourse of creditors is limited to specified property of such series, exceed the
fair value of the assets associated with such series, except that the fair value of property of
the series that is subject to a liability for which the recourse of creditors is limited shall be
included in the assets associated with such series only to the extent that the fair value of that
property exceeds that liability. A member who receives a distribution in violation of this
subsection, and who knew at the time of the distribution that the distribution violated this
subsection, shall be liable to a series for the amount of the distribution. A member who
receives a distribution in violation of this subsection, and who did not know at the time of
the distribution that the distribution violated this subsection, shall not be liable for the
amount of the distribution. Subject to § 18-607(c) of this chapter, which shall apply to any
distribution made with respect to a series under this subsection, this subsection shall not
affect any obligation or liability of a member under an agreement or other applicable law for
the amount of a distribution.
(i) Unless otherwise provided in the limited liability company agreement, a
member shall cease to be associated with a series and to have the power to exercise any
rights or powers of a member with respect to such series upon the assignment of all of his
limited liability company interest with respect to such series. Except as otherwise provided
in a limited liability company agreement, any event under this chapter or a limited liability
company agreement that causes a member to cease to be associated with a series shall not, in
itself, cause such member to cease to be associated with any other series or terminate the
continued membership of a member in the limited liability company.
(j) Subject to § 18-801 of this chapter, except to the extent otherwise provided
in the limited liability company agreement, a series may be terminated and its affairs wound
up without causing the dissolution of the limited liability company. The termination of a
series established in accordance with subsection (b) of this section shall not affect the
limitation on liabilities of such series provided by subsection (b) of this section. A series is
terminated and its affairs shall be wound up upon the dissolution of the limited liability
company under § 18-801 of this chapter or otherwise upon the first to occur of the
following:
At the time specified in the limited liability company agreement;
Upon the happening of events specified in the limited liability
company agreement;
Unless otherwise provided in the limited liability company
agreement, upon the written consent of all members associated with such series; or
The termination of such series under subsection (1) of this section.
(k) Notwithstanding § 18-803(a) of this chapter, unless otherwise provided in
the limited liability company agreement, a manager associated with a series who has not
wrongfully terminated the series or, if none, the members associated with the series or a
person approved by the members associated with the series or, if there is more than one class
or group of members associated with the series, then by each class or group of members
associated with the series, in either case, by members who own more than 50 percent of the
then current percentage or other interest in the profits of the series owned by all of the
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members associated with the series or by the members in each class or group associated with
the series, as appropriate, may wind up the affairs of the series; but, if the series has been
established in accordance with subsection (b) of this section, the Court of Chancery, upon
cause shown, may wind up the affairs of the series upon application of any member
associated with the series, his legal representative or assignee, and in connection therewith,
may appoint a liquidating trustee. The persons winding up the affairs of a series may, in the
name of the limited liability company and for and on behalf of the limited liability company
and such series, take all actions with respect to the series as are permitted under §18-803(b)
of this chapter. The persons winding up the affairs of a series shall provide for the claims
and obligations of the series as provided in § 18-804(b) of this chapter and distribute the
assets of the series as provided in § 18-804(a) of this chapter. Actions taken in accordance
with this subsection shall not affect the liability of members and shall not impose liability on
a liquidating trustee.
(1) On application by or for a member or manager associated with a series
established in accordance with subsection (b) of this section, the Court of Chancery may
decree dissolution of such series whenever it is not reasonably practicable to carry on the
business of the series in conformity with a limited liability company agreement.
(m) If a foreign limited liability company that is registering to do business in the
State of Delaware in accordance with § 18-902 of this chapter is governed by a limited
liability company agreement that establishes or provides for the establishment of designated
series of members, managers or limited liability company interests having separate rights,
powers or duties with respect to specified property or obligations of the foreign limited
liability company or profits and losses associated with specified property or obligations, that
fact shall be so stated on the application for registration as a foreign limited liability
company. In addition, the foreign limited liability company shall state on such application
whether the debts, liabilities and obligations incurred, contracted for or otherwise existing
with respect to a particular series, if any, shall be enforceable against the assets of such series
only, and not against the assets of the foreign limited liability company generally."
Section 10. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 18-216" to read as follows:
"§ 18-216. Approval of conversion of a limited liability company.
A domestic limited liability company may convert to a business trust or association,
a real estate investment trust, a common-law trust, a general partnership (including a
registered limited liability partnership) or a limited partnership (including a registered
limited liability limited partnership), organized, formed or created under the laws of the
State of Delaware, upon the authorization of such conversion in accordance with this
section. If the limited liability company agreement specifies the manner of authorizing a
conversion of the limited liability company, the conversion shall be authorized as specified
in the limited liability company agreement. If the limited liability company agreement does
not specify the manner of authorizing a conversion of the limited liability company and does
not prohibit a conversion of the limited liability company, the conversion shall be authorized
in the same manner as is specified in the limited liability company agreement for authorizing
a merger or consolidation that involves the limited liability company as a constituent party to
the merger or consolidation. If the limited liability company agreement does not specify the
manner of authorizing a conversion of the limited liability company or a merger or
consolidation that involves the limited liability company as a constituent party and does not
prohibit a conversion of the limited liability company, the conversion shall be authorized by
the approval by the members or, if there is more than one class or group of members, then
by each class or group of members, in either case, by members who own more than 50
percent of the then current percentage or other interest in the profits of the domestic limited
liability company owned by all of the members or by the members in each class or group, as
appropriate."
Section 11. Amend § 18-302(a), Chapter 18, Title 6 of the Delaware Code by adding the
following sentence at the end of said subsection:
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"A limited liability company agreement may provide that any member or class or group of
members shall have no voting rights."
Section 12. Amend § 18-305(0, Chapter 18, Title 6 of the Delaware Code by adding the
following sentences immediately following the only sentence of said subsection:
"If the limited liability company refuses to permit a member to obtain or a manager to
examine the information described in subsection (a)(3) of this section or does not reply to
the demand that has been made within 5 business days atier the demand has been made, the
demanding member or manager may apply to the Court of Chancery for an order to compel
such disclosure. The Court of Chancery is hereby vested with exclusive jurisdiction to
determine whether or not the person seeking such information is entitled to the information
sought. The Court of Chancery may summarily order the limited liability company to
permit the demanding member to obtain or manager to examine the information described in
subsection (a)(3) of this section and to make copies or abstracts therefrom; or the Court of
Chancery may summarily order the limited liability company to furnish to the demanding
member or manager the information described in subsection (a)(3) of this section on the
condition that the demanding member or manager first pay to the limited liability company
the reasonable cost of obtaining and furnishing such information and on such other
conditions as the Court of Chancery deems appropriate. When a demanding member seeks
to obtain or a manager seeks to examine the information described in subsection (a)(3) of
this section, the demanding member or manager shall first establish (1) that the demanding
member or manager has complied with the provisions of this section respecting the form and
manner of making demand for obtaining or examining of such information, and (2) that the
information the demanding member or manager seeks is reasonably related to the member's
interest as a member or the manager's position as a manager, as the case may be. The Court
of Chancery may, in its discretion, prescribe any limitations or conditions with reference to
the obtaining or examining of information, or award such other or further relief as the Court
of Chancery may deem just and proper. The Court of Chancery may order books,
documents and records, pertinent extracts therefrom, or duly authenticated copies thereof, to
be brought within the State of Delaware and kept in the State of Delaware upon such terms
and conditions as the order may prescribe."
Section 13. Amend § 18-603, Chapter 18, Title 6 of the Delaware Code by
inserting the word "only" immediately following the first usage of the words "from a limited
liability company" in the first sentence thereof, by deleting the second and third sentences thereof in
their entirety, and adding the following sentences at the end of § 18-603 to read as follows:
"Notwithstanding anything to the contrary under applicable law, unless a limited liability
company agreement provides otherwise, a member may not resign from a limited liability
company prior to the dissolution and winding up of the limited liability company.
Notwithstanding anything to the contrary under applicable law, a limited liability company
agreement may provide that a limited liability company interest may not be assigned prior to
the dissolution and winding up of the limited liability company.
Unless otherwise provided in a limited liability company agreement, a limited
liability company whose original certificate of formation was filed with the Secretary of
State and effective on or prior to July 31, 1996, shall continue to be governed by 6 Del. C,
§ 18-603 as in effect on July 31, 1996, and shall not be governed by this section."
Section 14. Amend § 18-702(b), Chapter 18, Title 6 of the Delaware Code by
redesignating paragraph "( I)" as paragraph "(2)", by redesignating paragraph "(2)" as paragraph
"(3)", and by adding a new paragraph designated as paragraph "(1)" in its appropriate numerical
order to read as follows:
"(I ) An assignment of a limited liability company interest does not entitle
the assignee to become or to exercise any rights or powers of a member,"
Section 15. Amend §18-801, Chapter 18, Title 6 of the Delaware Code by
deleting subsection (4) thereof in its entirety and by substituting in lieu thereof the following:
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806 Chapter 360
Vol. 70
"(4) The death, retirement, resignation, expulsion, bankruptcy or
dissolution of any member or only the member, members or class or classes or
group or groups of members specified in the limited liability company agreement, or
the occurrence of any other event that terminates the continued membership of any
member, or only such member, members or class or classes or group or groups of
members specified in the limited liability company agreement, unless the business
of the limited liability company is continued (i) within 90 days following the
occurrence of any such event either (A) by the vote or written consent of the
percentage in interest of the members or class or classes or group or groups of
members stated in the limited liability company agreement, or (B) if no such
percentage is specified in the limited liability company agreement, by the vote or
written consent of not less than a majority in interest of the remaining members, or
(ii) pursuant to a right to continue stated in the limited liability company agreement;
or"
Section 16. Amend § I8-1 105(a)(3), Chapter 18, Title 6 of the Delaware Code
by adding immediately after the words "Upon the receipt for filing of' the words "a certificate of
limited liability company domestication under § 18-212 of this chapter, a certificate of transfer
under § 18-213 of this chapter, a certificate of conversion to limited liability company under § 18-
214 of this chapter,",
Section 17. This Act shall become effective August I, 1996.
Approved June 10, 1996
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FORMERLY
HOUSE BILL NO. 529
AN ACT TO AMEND CHAPTER 15, TITLE 6 OF THE DELAWARE CODE RELATING TO
THE REGISTRATION AND REGULATION OF FOREIGN REGISTERED LIMITED
LIABILITY PARTNERSHIPS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (three-fifths of all members elected to each house thereof concurring
therein):
Section 1 Amend § 1502, Chapter 15, Title 6 of the Delaware Code by adding
the following new subsection "(4)", and by redesignating the subsequent subsections accordingly:
"(4) 'Foreign registered limited liability partnership means a registered
limited liability partnership or a limited liability partnership formed pursuant to an
agreement governed by the laws of a jurisdiction other than this state and registered
as such under the laws of such other jurisdiction."
Section 2 Amend § 1547, Chapter 15, Title 6 of the Delaware Code by adding
the following new subsections "(c)" and "(d)":
"(c) Subject to any statutes for the regulation and control of specific types
of businesses, foreign registered limited liability partnerships may transact business in
this state and are not required to register with the Secretary of State under this
Chapter.
(d) The internal affairs of foreign registered limited liability partnerships
and the liability of partners for debts, obligations and liabilities of or chargeable to the
foreign registered limited liability partnership or another partner or partners, shalt be
subject to and governed by the laws of the jurisdiction pursuant to the laws of which
the foreign registered limited liability partnership is governed."
Section 3 This Act shall become effective on the date of enactment.
Approved June 10, 1996
IMMA,
Vol. 70 807
CHAPTER 362
FORMERLY
HOUSE BILL NO. 530
AN ACT TO AMEND CHAPTER 17, TITLE 6 OF THE DELAWARE CODE RELATING TO
THE CREATION, REGULATION, OPERATION AND DISSOLUTION OF
DOMESTIC LIMITED PARTNERSHIPS AND THE REGISTRATION AND
REGULATION OF FOREIGN LIMITED PARTNERSHIPS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
DELAWARE (three-fifths of all members elected to each house thereof concurring
therein):
Section I. Amend § 17-203, Chapter 17, Title 6 of the Delaware Code by
adding immediately prior to the punctuation mark "." at the end of the first sentence thereof, the
words ", or upon the filing of a certificate of transfer.
Section 2. Amend § 17-204(a)(1), Chapter 17, Title 6 of the Delaware Code by
adding immediately following the word "partnership" the words ", a certificate of limited
partnership domestication, a certificate of conversion to limited partnership and a certificate of
transfer.
Section 3. Amend § 17-206(a), Chapter 17, Title 6 of the Delaware Code by
adding immediately following the words "any restated certificate" the words ", any certificate of
conversion to limited partnership, any certificate of transfer, any certificate of limited partnership
domestication,".
Section 4. Amend § 17-206(a)(1), Chapter 17, Title 6 of the Delaware Code by
adding immediately following the words "restated certificate" the words ", the certificate of
conversion to limited partnership, the certificate of transfer, the certificate of limited partnership
domestication".
Section 5. Amend § 17-206(b), Chapter 17, Title 6 of the Delaware Code by
adding, immediately following the first usage of the words "acts as a certificate of cancellation," in
the second sentence of said subsection, the words "or a certificate of transfer," by adding
immediately following the second usage of the words "acts as a certificate of cancellation," in the
second sentence of said subsection, the words "or a certificate of transfer," and by adding the
following sentences immediately following the second sentence of said subsection:
lpon the tiling of a certificate of limited partnership domestication, or upon the
future effective date or time of a certificate of limited partnership domestication, the
entity filing the certificate of limited partnership domestication is domesticated as a
limited partnership with the effect provided in § 17-215 of this title. Upon the filing
of a certificate of conversion to limited partnership, or upon the future effective date
or time of a certificate of conversion to limited partnership, the entity filing the
certificate of conversion to limited partnership is converted to a limited partnership
with the effect provided in § 17-217 of this title."
Section 6. Amend § 17-206(c). Chapter 17, Title 6 of the Delaware Code by
adding immediately following the words "a restated certificate" the words ", a certificate of
conversion to limited partnership, a certificate of translCr, a certificate of limited partnership
domestication".
Section 7. Amend § 17-207(a), Chapter 17. Title 6 of the Delaware Code by
adding immediately following the word "cancellation" the words "or certificate of conversion to
limited partnership, certificate of transfer or certificate of limited partnership domestication".
Section 8. Amend § 17-208, Chapter 17, Title 6 of the Delaware Code by
adding immediately prior to the punctuation mark "." at the end of the only sentence of said section
the words "and which are permitted to be set forth in a certificate of limited partnership by § 17-
218(b) of this title"
Section 9. Amend § 17-211(c)(7), Chapter 17, Title 6 of the Delaware Code by
adding thereto immediately following the word "corporation" the words ", or limited liability
company", and by adding immediately following the words "under the laws of the State of
Delaware," the words "or a business trust organized under 12 Del, C , Ch. 38,".
Section 10. Amend Subchapter II, Chapter 17, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 17-215" to read as follows:
"§ 17-215. Domestication of non-United States entities.
(a) As used in this section, "non-United States entity" means a foreign limited
partnership (other than one formed under the laws of a state) (including a foreign registered
limited liability limited partnership (other than one formed under the laws of a state)), or a
corporation, a business trust or association, a real estate investment trust, a common-law
trust, or any other unincorporated business, including a general partnership (including a
registered limited liability partnership) or a limited liability company, formed, incorporated,
created or that otherwise came into being under the laws of any foreign country or other
foreign jurisdiction (other than any state).
(b) Any non-United States entity may become domesticated as a limited
partnership in the State of Delaware by complying with subsection (g) of this section and
filing in the Office of the Secretary of State in accordance with § 17-206 of this title:
A certificate of limited partnership domestication that has been
executed in accordance with § 17-204 of this title; and
A certificate of limited partnership that complies with § 17-201 of
this title and has been executed in accordance with § I 7-204 of this title,
(c) The certificate of limited partnership domestication shall state:
The date on which and jurisdiction where the non-United States
entity was first formed, incorporated, created or otherwise came into being;
The name of the non-United States entity immediately prior to the
filing of the certificate of limited partnership domestication;
The name of the limited partnership as set forth in the certificate of
limited partnership filed in accordance with subsection (b) of this section;
The future effective date or time (which shall be a date or time
certain) of the domestication as a limited partnership if it is not to be effective upon
the filing of the certificate of limited partnership domestication and the certificate of
limited partnership; and
The jurisdiction that constituted the seat, siege social, or principal
place of business or central administration of the non-United States entity, or any
other equivalent thereto under applicable law, immediately prior to the filing of the
certificate of limited partnership domestication.
(d) Upon the filing in the Office of the Secretary of State of the certificate of
limited partnership domestication and the certificate of limited partnership or upon the future
effective date or time of the certificate of limited partnership domestication and the
certificate of limited partnership, the non-United States entity shall be domesticated as a
limited partnership in the State of Delaware and the limited partnership shall thereafter be
subject to all of the provisions of this chapter, except that notwithstanding § 17-201 of this
title, the existence of the limited partnership shall be deemed to have commenced on the date
the non-United States entity commenced its existence in the jurisdiction in which the non-
United States entity was first formed, incorporated, created or otherwise came into being.
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Vol. 70
Chapter 362
Vol. 70
The domestication of any non-United States entity as a limited partnership
in the State of Delaware shall not be deemed to affect any obligations or liabilities of the
non-United States entity incurred prior to its domestication as a limited partnership in the
State of Delaware, or the personal liability of any person therefor.
The filing of a certificate of limited partnership domestication shall not
affect the choice of law applicable to the non-United States entity, except that from the
effective date or time of the domestication, the law of the State of Delaware, including the
provisions of this chapter, shall apply to the non-United States entity to the same extent as if
the non-United States entity had been formed as a limited partnership on that date.
Prior to filing a certificate of limited partnership domestication with the
Office of the Secretary of State, a partnership agreement shall be approved in the manner
provided for by the document, instrument, agreement or other writing, as the case may be,
governing the internal affairs of the non-United States entity and the conduct of its business
or by applicable non-Delaware law, as appropriate; provided that, in any event, such
approval shall include the approval of any person who, at the effective date or time of the
domestication, shall be a general partner of the limited partnership,
When any domestication shall have become effective under this section, for
all purposes of the laws of the State of Delaware, all of the rights, privileges and powers of
the non-United States entity that has been domesticated, and all property, real, personal and
mixed, and all debts due to such non-United States entity, as well as all other things and
causes of action belonging to such non-United States entity, shall be vested in the domestic
limited partnership and shall thereafter be the property of the domestic limited partnership as
they were of the non-United States entity immediately prior to its domestication, and the title
to any real property vested by deed or otherwise in such non-United States entity shall not
revert or be in any way impaired by reason of this chapter; but all rights of creditors and all
liens upon any property of such non-United States entity shall be preserved unimpaired, and
all debts, liabilities and duties of the non-United States entity that has been domesticated
shall thenceforth attach to the domestic limited partnership, and may be enforced against it
to the same extent as if said debts, liabilities and duties had been incurred or contracted by
the domestic limited partnership."
Section II. Amend Subchapter II, Chapter 17, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§ 17-216" to read as follows:
"§ 17-216. Transfer and continuance of domestic limited partnerships.
Upon compliance with the provisions of this section, any limited partnership
may transfer to any jurisdiction, other than any state, that permits the transfer to or
domestication or continuance in such jurisdiction of a limited partnership.
Notwithstanding anything to the contrary in this chapter or a partnership
agreement, the transfer described in subsection (a) of this section shall be approved in
writing by all of the partners. If all of the partners of the limited partnership shall approve
the transfer described in subsection (a) of this section, a certificate of transfer, executed in
accordance with § 17-204 of this title, shall be filed in the Office of the Secretary of State in
accordance with 17-206 of this title. The certificate of transfer shall state:
The name of the limited partnership and, if it has been changed, the
name under which it was originally filed;
the date of the filing of its original certificate of limited partnership
with the Secretary of State;
The jurisdiction to which the limited partnership will transfer:
The future effective date or time (which shall be a date or time
certain) of the transfer to the jurisdiction specified in subsection (b)(3) of this
section if it is not to be effective upon the filing of the certificate of transfer;
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810 Chapter 362
Vol. 70
That the transfer of the limited partnership has been approved in
accordance with the provisions of this section;
The agreement of the limited partnership that it may be served with
process in the State of Delaware in any action, suit or proceeding for enforcement of
any obligation of the limited partnership arising while it was a limited partnership of
the State of Delaware, and that it irrevocably appoints the Secretary of State as its
agent to accept service of process in any such action, suit or proceeding; and
The address to which a copy of the process referred to in subsection
(b)(6) of this section shall be mailed to it by the Secretary of State. In the event of
service hereunder upon the Secretary of State, the procedures set forth in § 17-
911(c) of this title shall be applicable, except that the plaintiff in any such action,
suit or proceeding shall furnish the Secretary of State with the address specified in
this subsection and any other address that the plaintiff may elect to furnish, together
with copies of such process as required by the Secretary of State, and the Secretary
of State shall notify the limited partnership that has transferred out of the State of
Delaware at all such addresses furnished by the plaintiff in accordance with the
procedures set forth in § 17-91I(c) of this title.
Upon the filing in the Office of the Secretary of State of the certificate of
transfer or upon the future effective date or time of the certificate of transfer and payment to
the Secretary of State of all fees prescribed in this chapter, the Secretary of State shall certify
that the limited partnership has filed all documents and paid all fees required by this chapter,
and thereupon the limited partnership shall cease to exist as a limited partnership of the State
of Delaware. Such certificate of the Secretary of State shall be prima facie evidence of the
transfer by such limited partnership out of the State of Delaware.
The transfer of a limited partnership out of the State of Delaware

LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- EIGHT
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 10, A. D.
1995
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 9, A. D.
1996
VOLUME LXX
Part II